R.D. Dhanuka, J.

1. Learned counsel appearing for the respondents in Civil Application No. 1424 of 2014 waive service. Learned counsel appearing for the respondents in Civil Application No. 656 of 2012 waives service. Rule, returnable forthwith. Heard the learned counsel appearing for the parties.

2. By civil application no. 1424 of 2014, the applicant seeks modification of the ad-interim order passed by this court on 18th April, 2012 in Civil Application No. 656 of 2012 ex-parte. By the said ad-interim dated 18th April, 2012 this court has granted ad-interim stay in terms of the prayer (b) of the civil application No. 656 of 2012 thereby granting stay of the execution application and implementation of the impugned order and judgment dated 18th July 2011 passed by MACT in favour of the claimant.

3. The learned counsel appearing for the insurer submits that under Order 41 Rule 3 of the Code of Civil Procedure, the discretion is granted to the appellate court to pass an order of deposit and/or to provide security while granting stay of the decree of the trial court. In support of this submission, learned counsel placed reliance on the judgment of the Supreme Court in case of Malwa Strips Pvt. Ltd. vs. Jyoti Ltd. (2009) 2 SCC 426 and particular paragraph 11. paragraph 11 and 12 of the said judgment reads thus :-

11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co. (2005)4 SCC 1, wherein it was held:

6. Order XLI Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases.

To the same effect is the decision of this Court in B.P. Agarwal and Anr. v. Dhanalakshmi Bank Ltd. and Ors. AIR 2008 SC 1431 The High Court in this case failed to notice the provisions of Sub-rule (3) of Rule 1 of Order XLI.

The appellate court, indisputably, has the discretion to direct deposit of such amount, as it may think fit, although the decreetal amount has not been deposited in its entirety by the judgment debtor at the time of filing of the appeal. But while granting stay of the execution of the decree, it must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate.

The High Court, with respect, failed to notice that suit was one under Order XXXVII of the Code. Whether it was maintainable or not may fall for consideration in the appeal. Even assuming that the same was not maintainable, the question which should have been posed by the High Court was as to whether sufficient cause had been made out to reverse the decree passed in favour of the appellant. Even a decree could have been passed having re